Using The DMCA To Fight Copyright Infringment

Notice to my readers, The DMCA is a U.S. law that governs U.S. hosting providers. If the site hosting your copyrighted material is hosted outside the U.S. the DMCA does not apply. I have found my images hosted on servers in China and Russia and all over the Middle East and I have come to the conclusion that those infringements are best left alone. The European Union does have the European Directive on Electronic Commerce (EDEC) which I have not researched.

Over the years I have been finding more and more of my photos being used on the Web without my permission. This is a quick guide to detecting and enforcing copyright.

The first step is to find if your image is being used. For this tutorial I will use one of my more frequently purloined photos. This photo of the Downtown Houston skyline is just such a photo.

Sabine Bridge

The first thing you need to determine is whether or not your photo is being used on the Internet without your permission. To do this, go to images.google.com. Here you will notice an icon in the search box that looks like a camera.

Google Image Search

Click on the camera and select “Search By Image” and this will bring up a dialogue box that will take you through uploading your image or providing a URL link to your image and searching Google with it.

For those using Google Chrome there is a nifty plugin called Search by Image that will, once installed, allow you to right click an image on the Web and search Google with it. Either way, the results are returned in the same way.

googlesearch1

As you can see in this example, Google shows you a set of images that are similar. Not surprising, there are a number of photos of the downtown Houston skyline by other photographers. But the list below is more telling. As you can see, there are several links to pages hosting my exact photo. Some of them are mine (obviously) and some of them are sites that I have licensed the photo to. And then there are the others. The copyright infringers.

At this point I click the link on a suspected infringer and collect the URL to do some research. For this example I will use my own Web site so as not to incur the wrath of an infringer who might take issue with me calling them out in a public forum.

Here we see this guy named Jay Lee who is portraying my photo as his own. What a jerk!

sabineinfringment

Now at this point you have two choices. You can peruse the Web site hosting your image and try to find contact info for the person or company and try to deal with them directly. This method yields a variety of results. Sometimes the infringer will agree to remove the image, or they might offer to license the image or, more frequently than I care for, they will tell your something along the lines of “too bad, so sad” or even ignore you entirely. Some infringers tend to get downright nasty.

Due to the large number of infringers I tend to come across I opt to deal with the hosting providers. Most hosting providers have provisions for dealing with Digital Millennium Copyright Act (DMCA) notices that will put the hosting provider in the position of dealing with their customer instead of you.

To go this route does, however, require some research and effort.

The first thing to do is find the I.P. address of the Web site. Simply opening a command prompt and using NSLOOKUP will accomplish this easily.

nslookup

Now that we know the Web site is hosted at 173.193.136.178 we just need to know the controlling entity for that IP address. To learn this we go to the American Registry For Internet Numbers, also known as ARIN.

arin

Using their Whois search to search the IP address we can see that Softlayer is the hosting entity for this Web site. We can then click on the Abuse Point Of Contact link to find out who to send our notice to. It is worth noting that if the hosting entity is outside of the USA, you might not get any response to your DMCA notice. If the IP address comes back as belonging to the RIPE Network Coordination Centre you are likely wasting your time if you try to file a DMCA.

poc

As we see here, the abuse contact for SoftLayer is abuse@softlayer.com. This is who we need to send our notice to.

As per the Digital Millennium Copyright Act (DMCA), there is a specific formula for submitting a valid notice of copyright infringement. This is the template I use and has been very successful.

Compose a new email with the subject: Notice of Copyright Infringement

Then, in the body of the email include the following text and links:

The copyrighted work at issue is located at:

Insert the URL of the page infringing on your copyright here

Specifically, this image:

If possible, provide the direct link to the infringed image itself. You can usually find it by right-clicking the image and selecting “Copy Image URL” and then pasting the link in to your message. This works well in Chrome most of the time. In some cases you have to view the source of the Web site to dig this link out. If you can’t find it, don’t sweat it.

The corresponding URL where our copyrighted material is located:

Insert link to YOUR image on your Flickr page, blog page, whatever.

You can reach me at insert your email address for further information or clarification.

I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law.

I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Your Name
Your company (if you have one)
Your Web Site
Your Physical Address
Your Phone Number

The above template meets the required standards of a legitimate DMCA notice.

It is worth noting that some hosting sites provide online DMCA forms. These are preferable over sending an email when they are available. If you suspect a hosting provider might have such a form, a Google search using the name of the provider along with DMCA will usually lead you to the form.

Below are links to the more common hosting site DMCA forms

Once you have submitted your DMCA notice, whether by email or by online form, you can usually expect a notification that your notice has been received. Often it will include a tracking number that will be used for any communications and updates to the status of your notice. In my experience most hosting providers will have the issue resolved pretty quickly. Some of my notices have been addressed in less than 24 hours. The longest I have had to wait is about 3 or 4 business days.

Closing thoughts:

Not every notice will succeed. You will have to determine how much effort you are willing to expend enforcing your copyright. I would say my success rate, inside the USA, it about 95%. Your results may vary.

Many copyright infringers don’t know that they are doing anything wrong. They think the Internet is a bucket full of royalty free images and content. These kinds of infringers are often very apologetic and will remove the content.

Some infringers outsource their Web design to a third party. The Web site owner is lead to believe that their Web designer is making sure that the rights to the content are in place. Unfortunately, there are many unscrupulous Web designers.

And then there are the infringers who simply don’t care about your rights. They think that if you posted the image online, you should expect it will get stolen. The reactions of this type of infringer can sometimes be quite frightening.

Remember, if you are asserting copyright in the form of a DMCA Notice, you must be prepared to back it up legally. Once you have claimed your copyright you could be presented with a counter challenge if the person or company believes they have rights to the content.

And one last closing thought. In most cases, when you file a DMCA notice, the hosting provider will disable access only to the content you specify and leave the rest of their site in place. The one exception to this I have found is GoDaddy. Upon receipt of a valid DMCA Notice they will disable the customer entirely. That means you will have to work with their customer and GoDaddy to resolve it. This can be a HUGE pain, as I have learned from personal experience.

Good luck in your efforts. If you have any comments or questions, please feel free to contact me or leave a comment.

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Jay Lee

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